International child abduction – Serbia ( Hague Convention)

In the situations described above, the judiciaries and authorities of two different countries have always been involved in some way, which led to the inefficiency of the procedure for returning children to the country of regular residence, as well as different treatment from one country to another.

If, for example, we had a married couple living in Spain, after which the mother took the child to Serbia without the father’s consent, the father would have to initiate proceedings in Spain (or/and Serbia) to try to return the child to Spain. In this case, certain rules would apply, which would include the law of Spain and Serbia. However, if the mother took the child to Japan instead of Serbia, the rules of Japan and Spain would apply, and thus for every subsequent combination of countries. The parties would not have any certainty regarding the law that will be applied and the deadlines for the authority’s actions, because it is a matter of different regulations applied by the respective states, which would lead to actions that are not in the best interest of the child.

To solve this issue and to have one regulation that applies to all countries, in 1980 an international agreement was concluded in The Hague called The Convention on the Civil Aspects of International Child Abduction, or the Hague Convention on International Child Abduction for short, which regulates these issues. This agreement is binding on all states that have ratified it. Among others, the Republic of Serbia fully implements this international agreement. The Hague Convention has been ratified by about 100 countries, with the tendency for this number to increase.

The aims and objectives of the Hague Convention on International Child Abduction are to:

1. Ensure as soon as possible the return of a child who was illegally taken or detained in another signatory state
2. Ensure that the right to care and the right to see the child under the law of one of the contracting states are respected in the other contracting state

Therefore, the conclusion is that by applying this international convention, the request for return can only be approved or, on the other hand, it can be rejected. In these procedures, it is not possible to decide on the exercise of parental rights, alimony and other issues that are in the domain of deciding on child custody.

1. The first condition is that child abduction involves two countries applying the Hague Convention on International Child Abduction. This convention cannot be applied between a state that applies it and a state that has not signed it. In that case, special rules will apply.
2. The child is under 16 years old.
3. The child was taken from the contracting state where he had his regular residence
4. The person requesting return exercised the right to care for the child.

In such situations, it is necessary to urgently initiate proceedings before the central authority of the Republic of Serbia according to the Hague Convention on illegal cross-border abduction of children.

If your child has been taken or kept in Serbia, it is necessary to initiate a procedure according to the Hague Convention on International Child Abduction before the central authority in your country, i.e. the country where the child had his regular residence. If the central authority of your country accepts the request and forwards it to the Central Authority in the Republic of Serbia, the procedure can essentially begin.

The central authority of the Republic of Serbia almost without exception communicates with the central authority of the applicant state at this stage. After the central authority has all the relevant information and adequate documentation, it will initiate the procedure before the Basic Court to deal with the request for return.

During the proceedings before the Central Authority, as well as during the return proceedings before the court, representation by a lawyer is not formally necessary, but it is highly recommended that you have a lawyer to represent you during the entire duration of the proceedings because these proceedings are one of the most delicate and difficult when we speak on family law, i.e. family disputes.

Mandatory documentation with the return request is:

1. Original or certified copy of the child’s birth certificate
2. Original or copy of the decision on the exercise of parental rights, if any
3. Evidence of the circumstance that the child had a regular residence in the Republic of Serbia – for example: kindergarten/school certificate, photographs, medical documentation, certificate of registered residence/residence, other evidence in support of the fact that the child has a regular residence in the Republic of Serbia.
4. All other evidence that the applicant considers relevant for the return procedure

The request itself and all documentation must be in the Serbian language, as well as one copy translated into the official language of the country to which the request is to be forwarded. If it is not possible to translate into the official language of that country (e.g. there is no court translator for that language in Serbia), it can be translated into French or English as an alternative.

After the Central Authority of Serbia receives the request for return (or request for visitation), it will forward it to the central branch of the country where the child is located, provided that it contains everything that is necessary. The central authority of that country should strive for voluntary return to take place, and otherwise initiate appropriate procedures in that country to make a decision on the return of the child.

1. He/She should prove that the child had a regular residence in a country different from the country where the child was taken. Regular residence is the place where the child lives for a long time and where it is the center of the child’s life activities (existence of close or extended family, attendance at school, connection with the place in terms of the presence of friends, etc.).
2. He/She needs to prove that the right to custody has been violated in the country from which the child was taken. This is the situation when there is a court decision on the exercise of parental rights, and when the right to care exists according to the law itself (as in Serbia). Taking away a child without the consent of the other parent or keeping the child without the consent of the other parent is considered a violation of the right to custody. If the other parent is deprived of parental rights in the part related to making decisions regarding the child or business capacity, the removal will not be considered a violation of the right to care.
3. That the applicant exercised his right to custody when the child was taken or kept.
4. That the child is not yet 16 years old.

The court is not obliged to order the return of the child if the person opposing the child’s return proves:

1. That the person, institution, or other body that takes care of the person of the child did not actually exercise the right to care at the time of the removal or retention or that they agreed or subsequently consented to the removal or retention
2. That there is a serious risk that the return would expose the child to physical danger or psychological trauma or otherwise put him in an unfavorable position
3. Also, the court can refuse to order the return of the child if it finds that the child opposes the return and has reached the age and reached the level of maturity at which it is necessary to take the child’s opinion into account

What is very important to point out is that the burden of proving the reasons listed above is on the person opposing the return (it is usually the parent who abducted the child).

The deadline for initiating the procedure is one year from the day the child was illegally taken or kept, but the court or other authority will order immediate return even though more than a year has passed, provided that the child has not adapted to the new environment in the meantime.

Proceedings according to the Hague Convention are urgent! If the competent authorities do not decide within 6 weeks from the date of initiation of the procedure, the applicant, or the central authority of the country to which the request was submitted has the right to request an explanation for the delay.

However, in practice, there are rare situations where a decision is made so quickly, but certainly faster than in other procedures concerning children.

Unlike some countries, the central authority of the Republic of Serbia does not have a list of lawyers specialized in international child abduction proceedings. The applicant for return or the opposing party can freely choose a lawyer for international child abduction proceedings from among all registered lawyers in Serbia. According to the regulations of the Republic of Serbia, there is no formal specialization of lawyers for a specific area of ​​law. This means that every lawyer in his practice can deal with every branch of law, including proceedings for international child abduction. However, most lawyers/law firms have informally focused on one or two branches of law, while of course there are lawyers who deal with all branches of law.

Clients often ask us if our family lawyers can represent them abroad – the answer is that they cannot (except in Montenegro, where we can represent clients in the same way as in Serbia). If the procedure for international child abduction is initiated in Serbia, and the procedure itself is conducted in another country, a lawyer from Serbia submits a request for return to the central authority on your behalf, while you are represented in another country by a lawyer from that country whom you choose. As a family law firm that deals with these cases, we have a lot of professional contact with lawyers from other countries that deal with international family law, and in this sense, we can recommend reliable international family lawyers to our clients.